[2010] KEHC 2584 (KLR)
The court found that the plaintiffs had produced uncontroverted evidence, including the title deed, transfer documents, and proof of payment of rates, establishing their ownership of the suit property. The defendant, having failed to appear or defend the suit, did not challenge this evidence. The court held that the...
Source-derived case information.
- Citation
- [2010] KEHC 2584 (KLR)
- Parties
- Plaintiff: Amirali Hassanali Mohammed; Plaintiff: Zarina Amirali Hassanali Mohammed; Defendant: John Odero Nyanganga
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 265 of 2008
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiffs as prayed with costs
- Legal Topics
- Trespass to Land, Vacant Possession, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amirali Hassanali Mohammed
Plaintiff
Zarina Amirali Hassanali Mohammed
Plaintiff
John Odero Nyanganga
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant is wrongfully in occupation of the suit property and is a trespasser.
- 2 Whether the plaintiffs are entitled to vacant possession and an injunction restraining the defendant from remaining or constructing on the suit property.
Ratio Decidendi
The court found that the plaintiffs had produced uncontroverted evidence, including the title deed, transfer documents, and proof of payment of rates, establishing their ownership of the suit property. The defendant, having failed to appear or defend the suit, did not challenge this evidence. The court held that the plaintiffs are entitled to immediate and exclusive possession of the property and that the defendant is a trespasser. Accordingly, the plaintiffs were granted all the reliefs sought, including a declaration of trespass, vacant possession, an injunction restraining the defendant from remaining or constructing on the property, and costs of the suit.
Court Disposition
judgment for the plaintiffs as prayed with costs
Orders
- A declaration that the defendant is a trespasser on the suit property.
- The defendant is to give vacant possession of the suit property to the plaintiffs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 265 of 2008
AMIRALI HASSANALI MOHAMMED................................1ST PLAINTIFF
ZARINA AMIRALI HASSANALI MOHAMMED................2ND PLAINTIFF
VERSUS
JOHN ODERO NYANGANGA................................................DEFENDANT
JUDGMENT
The plaintiffs seek a declaration that the defendant by himself or his servants or agents or otherwise howsoever is wrongfully in occupation of Parcel No. Mombasa/Block V/Mainland Sourth/133 (hereinafter “the suit property”) and is accordingly a trespasser thereon and therefore not entitled to remain on the suit property. The plaintiffs further seek vacant possession of the suit property and an injunction restraining the defendant by himself or his servants or agents or otherwise howsoever from remaining or continuing in excavation and construction on the suit property.
The defendant has not entered appearance or filed defence. The suit therefore proceeded ex-parte. The plaintiff’s evidence was adduced by the 1st plaintiff. He testified that he and his wife, the 2nd plaintiff, are the registered proprietors of the suit property having purchased the same from Gharib Abdulla Mohamed in February 1989 at the consideration of Kshs. 150,000/=. He produced the Title Deed for the suit property and a copy of the transfer which was duly registered on 13th February 1989 as P.EX. 1 and 2. He also produced a Certificate of Official Search in respect of the suit property as PEX 3.
The 1st plaintiff further testified that he has been regularly paying the local council rates since 1993. He produced the latest demand for rates and a receipt issued for the payment thereof as PEX 4(a) and (b). Notwithstanding that the plaintiffs are the registered proprietors of the suit property, the defendant is carrying out construction on the same. He produced a photograph showing the said construction as PEX 5. He testified that neither him nor his wife have permitted the defendant to enter the suit property and carry on the said construction and the defendant has no reason for being on the suit property.
On the basis of that testimony, the plaintiffs prayed for the reliefs sought in the plaint.
Having carefully considered this matter, I am satisfied that the uncontroverted evidence tendered by the plaintiffs and particularly the documentary evidence comprised in the various exhibits tendered herein by the plaintiffs conclusively establish that the suit property belongs to the plaintiffs. They are therefore entitled to immediate and exclusive possession of the suit property. The defendant has deliberately violated the plaintiffs said right. The plaintiffs are therefore on a balance of probabilities entitled to the prayers sought in the plaint. For those reasons judgment is hereby entered in favour of the plaintiffs against the defendant as prayed with costs.
Orders accordingly.
DATED AND DELIVERED AT MOMBASA THIS 22ND DAY OF APRIL 2010.
F. AZANGALALA
JUDGE
Read in the presence of:-
Mutungi holding brief for Ndegwa for the plaintiffs.
F. AZANGALALA
JUDGE
22ND APRIL 2010